Tag Archives: Press Council

September 7, 2016 · 4:30 pm

Addressing the Sri Lankan Press Council on media law and mindful journalism

For the past two weeks I have been in Sri Lanka, where my speaking and interview schedule has been arranged by Dr Sugath Senarath, my co-author of our book Mindful Journalism and News Ethics in the Digital Era: A Buddhist Approach (Shelton Gunaratne, Mark Pearson and Sugath Senarath eds; Routledge, NY, 2015).

Professor Mark Pearson (@journlaw) at the Sri Lanka Press Council event. Photo: Julie Pearson

The highlight was my address to the Sri Lankan Press Council last Wednesday (August 31) on the topic “Designing free expression models in communication with special reference to Commonwealth countries – a mindful Australian perspective”.

I offer the full text of the address to you here. [Please note that sections are excerpted from earlier work, including The Journalist’s Guide to Media Law (co-authored with Mark Polden, Allen & Unwin, 2015), Mindful Journalism (reference above) and my unpublished 2013 address to the Timor Leste National Congress for Journalists.]

Press Commissioner, Press Council Chair and board members, co-author and host Dr Sugath Senarath, academic and media colleagues, journalism and media students and young reporters and other honored guests…

Thank you sincerely for having me here today to talk about the important topic of free expression – a fundamental feature in a working democracy.

It is important that all citizens – particularly journalists and politicians – have a grasp of the principles of free expression, media freedom and their historical context.

Origins of free expression

The free expression of certain facts and views has always been a dangerous practice, with countless people put to death for expressing religious or political views throughout history. Many more have been imprisoned, tortured or punished for such expression. Socrates in 399 BCE elected to drink a poison—hemlock—rather than recant his philosophical questioning (Brasch and Ulloth, 1986, p. 9). The history of freedom of expression is as much a history of censorship, because when free expression has been threatened, intellectuals have been called upon to defend it. It was Johann Gutenberg’s invention of movable type in about 1450 and the massive growth in the publishing industry over the sixteenth and seventeenth centuries in the form of newsbooks and the activities of ‘pamphleteers’ that first triggered repressive laws, and then the movement for press freedom (Feather, 1988: 46). (It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today—often highly opinionated and quick to publish speculation and rumour.)

Delivering the Sri Lankan Press Council address in Colombo. Photo: Julie Pearson

The pamphleteers took umbrage at government attempts to impose a licensing system for printers from the mid-sixteenth century (Overbeck, 2001: 34). Political philosopher and poet John Milton took aim at this in 1644 with Areopagitica, a speech to the parliament appealing for freedom of the presses. He went on to utter the famous free speech principle: ‘Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’ (Patrides, 1985: 241). Milton inscribed his name on the title page of his unlicensed work, in defiance of the law he was criticising. The notion of free expression had spawned its offspring: press freedom.

Part of Milton’s argument centred on the ‘marketplace of ideas’—the belief that truth will win over falsehood when the two compete. This proposition of a contest between truth and falsehood was often used during the seventeenth and eighteenth centuries to justify freedom of expression (Smith, 1988: 31). It continues in public discourse today.

Two of the co-authors of ‘Mindful Journalism’, Professor Mark Pearson (left) and Dr Sugath Senarath from the University of Colombo.

Philosopher and political theorist John Locke took up the fight after Milton’s death. Under his social contract theory, governments are there to serve the people, and central to this is freedom of expression (Overbeck, 2001: 36).

Like Milton, Locke campaigned for the end of the English printing licence system, which expired in 1694 (Overbeck, 2001: 36). Those to speak out against restrictions on press freedom at the turn of the eighteenth century included novelist and journalist Daniel Defoe, who wrote ‘An Essay Upon the Regulation of the Press’ around 1704 (Brasch and Ulloth, 1986: 62), and John Trenchard and Thomas Gordon who, under the pen name ‘Cato’, wrote a series of letters about freedom in the 1720s (Brasch and Ulloth, 1986: 64–8).

England’s foremost philosopher of the late nineteenth century, John Stuart Mill, articulated the need for free speech in a liberal democratic society in On Liberty, first published in 1859 (Mill, 1991). He wrote:

The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. (1991: 20)

Mill’s On Liberty built on Milton’s ‘marketplace of ideas’ to define the boundaries of freedom of expression in the modern nation-state. One of the great legal minds of the eighteenth century, Sir William Blackstone, in his Commentaries on the Laws of England, had a great impact on the evolution of press freedom by defining it as the absence of ‘previous restraints upon publications’ (Blackstone, 1765–69: 151–2).

Blackstone’s notion of ‘prior restraint’ has underscored the development of media law in the United States. The idea was that freedom of the press could tolerate no restrictions before publication, such as licensing and taxes that had been imposed in Britain, but that the law should take its course after publication to punish those who abused this freedom. Publications should be tax and licence free, but subject to laws like defamation and contempt once published. In both Britain and its colonies, a common weapon for silencing the press had been the crime of ‘seditious libel’—any serious criticism of government or the Crown, whether or not the criticism was truthful. William Murray, Lord Chief Justice and Earl of Mansfield (1704–93), had coined the expression ‘the greater the truth, the greater the libel’ (Whitton, 1998), ensuring that truth would not stand up as a defence to seditious libel.

Despite these restrictions, basic press freedom had taken hold in Britain. Some thought the press had gone too far. In this context, the expression ‘the Fourth Estate’ was coined. At that time, there were said to be three ‘estates of the realm’—the Lords Spiritual, the Lords Temporal and the Lords Common. In 1790, English statesman Edmund Burke is said to have pointed to the press gallery in parliament and said: ‘There are three estates in Parliament but in the reporters’ gallery yonder sits a fourth estate more important far than they all.’ (Inglebart, 1987: 143).

The libertarian ideals on which press freedom is based were not confined to Britain. The movement for civil rights and individual liberties spread throughout Western Europe during the seventeenth to nineteenth centuries, epitomised by the French Revolution in 1789, leaving a legacy of press freedom throughout that region and its colonial outposts.

In Western democratic societies, journalists often take their liberties for granted. But there has never been utterly unshackled free speech or a completely free media: we operate on an international and historical continuum of free expression through to censorship. It is only over the past half-century that the notion of free expression and a free media has gained traction on a broader international scale.

Free expression internationally

There is no enforceable worldwide agreement on free expression as a fundamental human right, although some nations and regions have entrenched free expression in their constitutions. The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.

At face value, this statement seems to give all the world’s citizens a right to free expression. While a declaration of a lofty goal, it has many limitations, as we will see.

Stronger protections came internationally in 1966 when the United Nations (UN) adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19.

However, the right is limited because the covenant also recognises duties, responsibilities and restrictions covering respect for the rights and reputations of others, and the protection of national security, public order, public health or morals. Add to this the fact that many countries either have not ratified the covenant, or have not incorporated its provisions to make them part of their domestic law—as in the case of Australia.

At least three major democratic English-speaking nations in addition to the United States have bills of rights enshrining free speech. British and European liberal ideals found their way into the wording of the American Declaration of Independence in 1776, the US Constitution in 1789 and its Bill of Rights in 1791. Central to the Bill of Rights was the First Amendment to the US Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

US government attempts to restrain publications in the national interest have usually failed on First Amendment grounds.

The Canadian Charter of Rights and Freedoms (1982), like the US First Amendment, recognises freedom of the press as part of section 2(b), which confers upon every citizen the following freedoms: ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’. The United Kingdom and New Zealand legislation does not mention media freedom, opting instead for the broader term ‘freedom of expression’.

New Zealand’s Bill of Rights, enacted in 1990, states at section 14: ‘Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form’. In 2011, the New Zealand Supreme Court found that the right protected Valerie Morse, an anti-war protester who burned her country’s flag during a dawn memorial service in Wellington. Her conviction for offensive behaviour was set aside.

Despite this, there are many nations with such a free expression clauses in their constitutions where their governments have chosen to ignore them to advance their own interests or to prevent scrutiny of their actions. This has sometimes led to the harassment, assault, imprisonment and even murder of journalists. I note that the Sri Lankan Constitution also enshrines “freedom of speech and expression including publication” and it is encouraging that your new government has taken some first steps towards honouring that right which appears to have been neglected in recent decades. The recent passage of a Right to Information Act is one such encouraging step. Of course, such freedom of information instruments in many countries are ineffective because of the large numbers of exemptions to the release of documents available to governments, the cost of making applications, and the glacial speed with which bureaucracies approve requests for government information – using refusals and appeals to wear down the journalists rightfully seeking facts and information on behalf of the citizenry.

For many truth-seekers and truth-tellers, the commitment to free expression has taken the form of physical injury or danger—even death. The Committee to Protect Journalists (CPJ) lists more than 1200 journalists confirmed as killed in the course of their work since 1992, including 27 in 2016 to date. As a former correspondent for Reporters Without Borders, I must highlight the fact that the world is watching the new Sri Lankan government to see how enthusiastically it pursues and prosecutes those responsible for the murder of 19 journalists in this country since 1992 – criminals who it seems have been able to conduct their assassination of this democracy’s messengers with complete impunity. I suggest the Press Council might consider keeping this issue on the agenda in the interests of media freedom and as a tribute to those who have paid the ultimate price for exercising their Constitutional right to free expression.

Throughout the Asia-Pacific region, many others have died, suffered violence or have been imprisoned for what they report. Some have suffered in other ways, as the victims of lawsuits by those who set out to gag them.

Australia

Australia’s early history was marked by considerable censorship of its media, although an early battle between Governor Darling and the Chief Justice in 1827 prevented the licensing of newspapers.

Australia has no equivalent to the US First Amendment enshrining freedom of the press. However, in recent decades the High Court of Australia has recognised an implied freedom to communicate on matters of politics and government.

Press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative, press freedom, within new regulatory, technological and cultural contexts.

Recent inquiries into media regulation in the United Kingdom (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have recommended major changes to the regulation of media corporations and the ethical practices of journalists. Their motivation stems, at least ostensibly, from public angst—and subsequent political pressure—over a litany of unethical breaches of citizens’ privacy over several years in the United Kingdom, culminating in the News of the World scandal and the subsequent revelations at the Leveson Inquiry (2012), all of which had an undoubted ripple effect in Australia.

All proposals for any such government intervention with media freedom by such a controlling body by a Press Council or News Council were rejected after considerable pressure from media organisations as anathema to free expression.

Both inquiries acknowledged—and rejected—the notion of a revamped Australian Press Council, proposed in various submissions and in appearances by its then chair. The Australian Press Council was established in 1976 as a newspaper industry ‘self-regulatory’ body—a purely voluntary entity with no powers under law.) Nevertheless, both during and after these two reports, and with new support from most of its members, the Press Council moved quickly to ramp up its purview and powers to address many of its documented shortcomings, such as the refusal of some member newspapers to publish its findings and the threat of withdrawal of funding from others (Simpson, 2012). It locked its members into four-year commitments and established an independent panel to advise on a review of content standards.

At the same time as these changes to media regulation were being proposed, several reformulations of existing media laws were being considered by state, territory and federal governments and their respective law-reform bodies. They covered such topics as privacy law, media classification, intellectual property, cyber-bullying, shield laws and national security laws. Of these, new shield laws have subsequently been introduced in most Australian jurisdictions. Media law and regulation constitute a field subject to continual scrutiny and change, which makes it all the more important for students and professional communicators to keep pace with developments.

It is noteworthy that the self-regulatory institution journalists fear most – more than the Press Council and other self-regulation tribunals, is the ABC’s weekly program Media Watch, which was first screened in 1989. Its website promotes it as follows: ‘Everyone loves it until they’re on it’ (www.abc.net.au/mediawatch/). Criticised for being sometimes trite, and often bitchy, Media Watch has exposed some of the nation’s most spectacular ethical breaches over the past two decades. These include blatant instances of plagiarism and privacy invasion and, most famously, an exposé of secret payments being made to talkback radio stars for their endorsement of products and services without the knowledge of their listeners. While Media Watch itself has no sanctions available, the power of the program lies in the fact that ethical breaches and glaring errors are screened on national television, when journalists know their colleagues are watching. The ultimate tool of media self-regulation can indeed be the media itself!

There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, Ministers cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws that impact on free expression in other countries like Australia.
Beware of regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by the existing laws. Once media laws have been introduced it is hard to wind those laws back to re-establish eroded freedoms. Australia passed more than 60 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back. Media regulation is hard to undo because governments like to have that power.
Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. While journalists might like the idea of carrying an official card with privileged access, the narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches.
Judge a proposed law by its ultimate possible sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases, or perhaps not used against journalists. The real test is to look at the ultimate maximum sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
Media freedom is above politics. Media regulation was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Some political parties supported tougher regulation of the media because they had been the target of adverse coverage. A basic human right like free expression should be above politics in a democracy, yet most governments will strive to limit it.
Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
Be wary of ethics codes imposed by governments. Too often governments use ethics codes as a Trojan Horse to push through tougher restrictions on journalists. Ethical codes should be SELF regulatory systems, not legally enforceable instruments carrying potential fines and jail terms.
Training and education in law and ethics is crucial. Media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their understanding of the important role of the media in a democracy.
Educate the community about free expression and a free media. The constitutional right to press freedom and free expression need to be part of every school’s civics curriculum and media organisations need to remind their audiences of this constitutional right and its important history at every opportunity.

Mindful Journalism

Just as important as external regulatory and legal systems are the internal processes of journalists’ decision-making – their internal ‘moral compasses’. I have explored this phenomenon in developing the concept of ‘mindful journalism’ with colleagues Shelton Gunaratne and Sugath Senarath in a recent book – Mindful Journalism – published by Routledge in New York last year.

We explore the possibilities of applying some of Buddhism’s core principles to the secular phenomenon of journalism. It must be accepted that Buddhist practices such as ‘mindfulness’ and meditation have been adopted broadly in Western society in recent decades and have been embraced by the cognitive sciences in adapted therapeutic ways (Segal et al 2012).

Each of the constituent steps of the Noble Eightfold Path – understanding free of superstition, kindly and truthful speech, right conduct, doing no harm, perseverance, mindfulness and contemplation – has an application to the modern-day practice of truth-seeking and truth-telling – whether that be by a journalist working in a traditional media context, a citizen journalist or a serious blogger reporting and commenting upon news and current affairs.

We do not propose a definitive fix-all solution to the shortcomings in journalism ethics or their regulation. Rather, ‘mindful journalism’ is an acknowledgment that the basic teachings of one of the world’s major religions can offer guidance in identifying a common – and secular – moral compass that might inform our journalism practice as technology and globalization place our old ethical models under stress. Media coverage can be vastly improved with the application of such principles – working towards a journalism of wisdom and compassion.

One of the problems with emerging citizen journalism and news websites is that their proponents do not necessarily ascribe to traditional journalists’ ethical codes. In a global and multicultural publishing environment the challenge is to develop models that might be embraced more broadly than a particular country’s repackaging of a journalists’ code. However, codes of ethics have often failed to work effectively in guiding the ethics of the traditional journalists for whom they were designed, let alone the litany of new hybrids including citizen journalists, bloggers, and the avid users of other emerging news platforms. Core human moral principles from key classical teachings like the Noble Eightfold Path could form the basis of a more relevant and broadly applicable model for the practice of ‘mindful journalism’.

The recent international inquiries triggered by poor journalism ethical practices have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to explore new ways to recapture this. We should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary accommodating a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process. They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

Journalists must tell uncomfortable truths for the benefit of society and for the proper functioning of democracies. Politicians particularly need to have thick skins in recognition of the transparency and accountability of the public positions they hold. Before they attack the media they need to reflect upon whether they are acting through craving, attachment or ego.

Even the Buddha allowed for such uncomfortable truths to be spoken. In the Abhaya Sutta, the Buddha addressed Prince Abhaya on the qualities of Right Speech. He related to the prince six criteria for deciding what is worth saying. The third represents how the mindful journalist might approach such criticism of public figures:

[3] “In the case of words that the Tathagata knows to be factual, true, beneficial, but unendearing and disagreeable to others, he has a sense of the proper time for saying them.

Mindful journalists should strive to get their timing correct, but there is no doubt that painful truths sometimes must be spoken. This requires reflection, meditation and insight in the planning and execution of a story to help alleviate suffering. A functioning democracy requires that such unendearing and disagreeable statements sometimes be made about our fellow citizens – particularly those entrusted with the public purse and special powers. It is no less than the role of the Fourth Estate to fulfil this function, and it is heartening to see that Sri Lanka is again investing in the fundamental freedoms that allow journalists to do so. I am sure the Sri Lankan Press Council can play an important role in advocating for press freedom and encouraging a robust journalism of truth, wisdom and compassion.

Thank you.

———–

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

Leave a comment

Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media

Tagged as Buddhism, Buddhist journalism, censorship, communication ethics, communication law, Communication theory, defamation, Eightfold Path, ethics, First Amendment journalism, law, libel, mark pearson, media, media law, Media Report, mindful journalism, mindfulness, Press Council, Right Speech, Shelton Gunaratne, Sri Lanka, Sugath Senarath

March 21, 2014 · 2:56 pm

Threatening letters from officialdom chill free expression – @journlaw blog #MLGriff

By MARK PEARSON Follow @Journlaw

[With research assistance from RSF interns Toni Mackey and Eve Soliman]

Intimidating letters sent by two of Australia’s most senior public servants in recent weeks sound alarm bells for free expression and a free media.

The first – from the secretary for the Department of Immigration and Border Protection Martin Bowles – was directed to freelance journalist Asher Wolf following her co-written article for the Guardian Australia on February 19, 2014 titled ‘Immigration Department data lapse reveals asylum seekers’ personal details‘.

The database Wolf had sourced via the Department’s own public website contained personal details of one third of all asylum seekers held in Australia – almost 10,000 adults and children.

The department secretary’s letter implied Wolf had obtained the material on which the article was based by ‘dishonest or unfair means’. She says the data was simply sitting on the department’s website. Bowles demanded Wolf agree not to publish the contents and ‘return all hard and soft copies of the information’ including any her storage devices.

You can view the letter here: WolfDIBP to The Guardian – A Wolf.

And in this 11 minute interview Wolf explains the episode in her own words:

On advice from her lawyers she wrote back, refusing to provide the department with anything and cited her ethical obligation as a journalist to protect her sources. To date there has been no further word from the department since that February 26 reply.

Wolf explained to @journlaw: “The response from the Government was to reframe the issue rather than sort of saying ‘whoops we made a mistake, sorry, let’s fix it up’. It was to frame it as though it had been illicitly accessed, that the confidential information had to be given back, that the files had to be given back.”

The second intimidating letter was to a politician rather than a journalist, but is no less alarming for its potential chilling effect on free expression – and all the more alarming because it involved a military chief writing direct to a senator-elect.

Chief of the Australian Defence Force General David Hurley wrote to Palmer United Party senator-elect Jacqui Lambie on March 7, following the Tasmanian politician’s claims in a media release that sexual abuse in the military was ‘an intractable problem’.

His letter stated he was disappointed she issued a media release before raising her concerns with him and encouraged her to first provide him an opportunity to reply to any such claims in the future. See the letter here: HurleyToLambieLetter

In her response (LambieReply to Australia’s Chief of Defence’s letter of complaint), Lambie – a former soldier – described General Hurley’s letter as disrespectful, condescending and improper.

“For you as the head of our defence force to take the unprecedented and extraordinary step of trying to influence an elected member of parliament by sending a letter with such a patronizing and condescending tone is a disgrace,” she wrote.

She raised the possibility of the letter constituting a contempt of parliament as an improper interference “with the free performance by a senator of the senator’s duties as a senator”.

Of course, that might be too long a stretch, but it is certainly of concern when top military and immigration officials start writing direct to journalists and politicians chiding them for their public statements and implying some wrongdoing on their part.

It is spin and ‘media management’ gone way too far – and is symptomatic of nations far lower down Reporters Without Borders’ World Press Freedom Index than Australia’s.

Both Immigration Secretary Bowles and General Hurley undoubtedly have a host of excuses for penning those letters. Bowles was clearly trying to limit the damage from the privacy leak, and indeed has obligations under the Privacy Act to demonstrate his department has done what it can to retrieve leaked information and minimise any damage caused. Hurley was clearly frustrated by a politician’s insistence on making unspecified claims of abuse when there were inquiries and other avenues for complaints to be made.

But many other strategies were available to them to deal with these issues short of writing stern reprimands from their own desks, directly to a journalist and a politician. The democratic doctrine of ‘separation of powers’ is somewhat blurry in Australia, and it is made all the more so when senior members of the executive engage in public spats with the media and politicians.

I cannot imagine that such high level officials would not realise, or be advised, that their intimidating letters would not reach the public domain. If they thought they would remain secret, then we must ask important questions about how frequently this technique is being used. If they understood their letters would likely go public, then the threat to free expression is all the more chilling.

© Mark Pearson 2014

Leave a comment

Filed under free expression, Media freedom, Media regulation, Uncategorized

Tagged as Code of Ethics, media freedom, media law, media relations, Press Council, press regulation, privacy, public relations, Reporters Without Borders, RSF, separation of powers, spin

March 7, 2014 · 3:11 pm

10 mins with Journlaw: RSF correspondent Bob Howarth discusses media freedom and Timor Leste

By MARK PEARSON Follow @Journlaw

IN the latest episode of 10 Minutes With Journlaw, I interview Reporters Without Borders correspondent for Timor Leste about media freedom issues there and elsewhere in the region.

10 Minutes With Journlaw: Mark Pearson interviews RSF correspondent Bob Howarth

Howarth is a veteran newspaper reporter, editor and manager who has worked throughout the Australia-Asia-Pacific region for more than four decades.

He is Reporters Without Borders (RSF) correspondent for Papua New Guinea, Timor Leste and the Solomon Islands.

In this interview we talk about media freedom issues in the region.

(10 mins, recorded 6 March 2014).

[See a summary of my speech to last October’s journalism congress in Timor Leste in my earlier post].

Read Lindsay Murdoch’s March 5 story in The Age about the state of media freedom in East Timor here.

© Mark Pearson 2014

Leave a comment

Filed under Uncategorized

Tagged as Code of Ethics, media freedom, media law, Press Council, press regulation, Timor, Timor Leste, Xanana Gusmao

October 30, 2013 · 11:26 am

Timor-Leste journalists decide on ethics code and press council as tougher laws loom

By MARK PEARSON Follow @Journlaw

AN historic congress of Timor-Leste journalists held in Dili over the weekend (October 25-27) voted for their first code of ethics and a seven-member press council.

But the next hurdle for media freedom in the small Asia-Pacific nation will be a press law currently before the national parliament which it is feared will feature a journalist licensing system and criminal penalties.

Timor-Leste PM Xanana Gusmao greets officials at the national journalists’ congress on Friday. Photo © Mark Pearson 2013

The media law proposed by a committee of journalists advising the government featured self-regulatory controls. However, the final version includes amendments proposed by the Secretary of State for Social Communication, Mr Nélio Isaac Sarmento, rumoured to include the licensing and criminal sanctions.

Opening the congress on Friday, Prime Minister Xanana Gusmao scolded journalists for not having developed adequate self-regulation when he had warned them to do so in 2009.

But he congratulated the media associations on their latest efforts to unify for a code of ethics and press council; stating that press freedom was important to democracy, but that freedom should be exercised responsibly.

More than 150 journalists in attendance on Sunday – representing several journalism associations – voted for the 10 point code of ethics, featuring a preamble affirming the importance of free expression and media self-regulation and clauses on: accuracy and impartiality, opposition to censorship, defence of the public interest, anti-discrimination, separation of fact from opinion, confidentiality of sources, quick correction of inaccuracies, rejection of plagiarism, protection of identity of victims, and rejection of financial inducements.

That final clause will present major challenges for Timor-Leste journalists, many of who freely admit to accepting payments from politicians for positive coverage.

Media sources say reporters are often paid US$5-20 at press conferences and up to US$40 by officials when accompanying ministers on tours to the provinces.

Such payments represent a substantial influence, given media outlets only pay their reporters about US$140 per month plus lunch and travel expenses.

Other problems facing the industry are a lack of training, a dependence on government advertising and the endemic drift of journalists to public service positions when they become available. This leaves editors and news directors with newsrooms staffed by inexperienced personnel.

The congress was funded by the European Union’s 1 million euro Media Support Program, co-ordinated by Portugal.

Foreign experts sharing their own countries’ experiences with self-regulation included the chairman of the Indonesian Alliance of Independent Journalists (AJI) Eko Maryadi, Christiana Chelsia Chan from the Press Council of Indonesia, Portuguese journalism academics Joaquim Fidalgo and Carlos Camponez, and @journlaw (Mark Pearson, Professor of Journalism and Social Media, Griffith University, Australia). [See a summary of my speech in my earlier post].

© Mark Pearson 2013

Under-resourced … the director of the Jornal Independente, Mouzinho Lopes de Araujo, in his Dili office. Photo © Mark Pearson 2013

A port-side banner in Dili advertising the congress. Photo © Mark Pearson 2013

Timor-Leste Prime Minister Xanana Gusmao addresses the journalism congress. Photo © Mark Pearson 2013

Timor-Leste journalists vote on their ethical code. Photo © Mark Pearson 2013

Media freedom – blooming amidst the razor wire. Photo © Mark Pearson 2013

Leaders of some of Timor-Leste’s many journalism associations preside over the congress. Photo © Mark Pearson 2013

Education and training … crucial to the strength of the media in Timor-Leste. Photo © Mark Pearson 2013

1 Comment

Filed under Uncategorized

Tagged as Code of Ethics, media freedom, media law, Press Council, press regulation, Timor, Timor Leste, Xanana Gusmao

October 24, 2013 · 5:08 pm

Speech in Timor Leste – top ten media regulation lessons from Australia

By MARK PEARSON Follow @Journlaw

I’ve arrived in Dili, Timor Leste, to deliver an address tomorrow (Friday, October 25) to this small nation’s National Congress of Journalists. The congress is working towards introducing a new code of ethics and a press council. Here is a preview of some highlights from my speech…

Dili, Timor Leste. (Credit: Google free use search / Flickr)

Dili, Timor Leste. (Google free use / Flickr)

Firstly I wish to thank the organisers and sponsors for allowing me the privilege of being here for this important congress. I also wish to formally pay my respects to the six journalists who were killed here in 1975 – including three Australians – and the countless Timorese people who have over decades paid a high price for daring to seek and tell the truth.

As journalists and editors you are so often in competition for your stories and for your audiences that it is a rare treat to see you gather as a professional group in a spirit of collaboration to progress the elevation of ethical standards through self-regulation.

…As a developed western democracy Australia drew heavily upon British and US traditions of politics and government, resulting in a relatively high level of free expression by international standards. It usually ranks in the top 30 countries of the world in the various media freedom indices such as those issued by Reporters Without Borders in Paris and Freedom House in New York.

But Australia is certainly not a shining light of media freedom. In at least two important ways Australia actually has lessons to learn from Timor Leste. One is that, unlike most democracies, the Australian Constitution makes no reference to freedom of expression or a free press. This distinguishes it from Timor Leste, where your Constitution goes to some length to spell out the freedom of speech and information at section 40 and the freedom of the press and mass media at section 41. A second important indicator is that Australia still has criminal defamation on the books in most states. This is a law abused by governments internationally throughout history, and Timor Leste should be applauded for removing it in 2009.

… Two major inquiries into the Australian news media in 2011 and 2012, followed by the Australian government’s attempts to introduce legislative reforms in 2013, prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level. Four regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; a federal government proposal for a new Public Interest Media Advocate with control over the self-regulators; and the status quo with a strengthened Australian Press Council policing both print and online media.

… There are several ways journalists in other countries considering regulatory models can learn from this recent experience in Australia.

Comparisons can be dangerous. Even in a democracy with a long history of relatively free expression politicians and governments will seek out and seize any opportunity to regulate the media. International comparisons can be dangerous because we operate within different political and cultural frameworks. When they were arguing for their media reforms, both Communications Minister Stephen Conroy and Prime Minister Julia Gillard cited RSF’s World Press Freedom Index, using the argument that Finland remained in number one position there despite having a statutory mechanism for its press regulation. They failed to mention that Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the Australia’s hundreds of other media laws that impact on free expression, which place it at number 26 on that same Index. Australia languishes there partly because of the very threats to media freedom posed by these recent inquiries.
Beware regulation creep. Existing laws such as defamation and contempt that apply to all citizens go a long way towards controlling media behavior. I have seen few serious ethical breaches that could not be handled by existing laws. Once media laws have been introduced it is hard to claw back eroded freedoms. Australia passed more than 50 new anti-terror laws after the September 2001 attacks on the US – many impacting on the media – and few of those have been wound back (Ewart et. al, 2013).
Don’t trade press freedom. Well meaning journalists and academics are sometimes willing to sacrifice media freedom because of the misbehavior of some media personnel. Several academics and small publishers stepped up to give the Finkelstein model their approval and a leading journalism educator helped draft it (Conversation, 2012). When you offer governments new powers to control the misbehaviour of some elements in the media you need to accept that those same powers might be used against you at some later stage.
Beware de facto licensing. There is the temptation to issue journalists with accreditation and registration in actual or de facto licensing schemes. The narrow defining of journalists and journalism by governments presents a real danger to free expression because it privileges some citizens over others as communicators. This gives those issuing and revoking such licenses influence over the message itself. It is even less appropriate in a new era of blogging and social media because the nature of news and journalism is even harder to define. Citizens might become reporters temporarily because of the scale of an event or issue or on an ongoing basis in a narrow field of interest that might momentarily become of broader public interest. It is inappropriate that they should have to seek registration or licensing as a journalist or that they should be punished for reporting without such official licence. Rather, their words or actions should be subject only to the communication limitations placed on all citizens, and in a working democracy they should be limited to only extreme breaches
Look to the ultimate sanction. The best test when trying to gauge the potential impact of new media regulations is not the assurances of their proponents that they will be used only rarely and only in extreme cases. The real test is to look at the ultimate sanctions available and if these involve the potential jailing or fining of journalists then they are anathema to press freedom in a democracy.
Media freedom is above politics. This was certainly a long overdue debate in Australia, but it was politicised from the outset which undermined the likelihood of the implementation of any of the proposals. Labor and Greens applauded it and pushed for its enactment, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage about them in News Limited publications locally (Kitney et.al, 2012). A basic human right like free expression are above politics, yet most governments will strive to limit it.
Media freedom is above commercial interest. Opponents of media regulation need to be careful they are not being seen as simply protecting their own commercial enterprises. Criticism of the recommendations by the larger Australian media groups on free expression grounds – particularly by Murdoch executives – were dismissed as a defence of their vested interests (Meade and Canning, 2012). Such pigeon-holing of all advocates of media freedom and critics of regulation proposals is misplaced. It helps to recruit other senior intellectuals in defence of media freedom – including academics, business leaders and other public intellectuals.
Look to carrots instead of sticks. The Convergence Review’s suggestion that some existing media exemptions to certain laws (particularly consumer law) might be linked to their membership of a media council is worth exploring because it avoids introducing new sanctions on the media. However, these must be carefully scrutinised to ensure they are not stemming the free flow of information or establishing a de facto licensing system.
Adopt a universal ethics code. A uniform code of practice across all news media is a vital. It is in journalists’ best interests that they have one, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. Australia has far too many self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets.
Training and education in law and ethics is crucial. Media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their understanding of the important role of the media in a democracy.

Nowhere in the world has there ever been unshackled free speech or a free media. Media regulatory systems and ethical frameworks are on the agenda in many countries, and we are challenged to accommodate free expression and its close relative press freedom within new technological and cultural contexts.

The argument by governments in such countries is that the economy and political system are too fragile to allow freedom of the press. The reality is that freedom of the press is too fragile to allow governments to limit it. Censorship can only shackle democracy which is itself dependent upon the free flow of information and opinion to inform the voting citizen.

Too often journalists and academics get so caught up in devising new ethical codes that they start to invite governments into the control of sanctions for their breach. But the moment we let governments get involved we rarely have self-regulation. We then have what are commonly known as ‘laws’ – legislated by governments and enforced by the courts – and that is called regulation. The most important lesson from Australia is that it is all too easy to give away basic liberties in our pursuit of recalcitrant colleagues and in our scramble for public acknowledgment of the status of journalism as a profession.

…

© Mark Pearson 2013

2 Comments

Filed under death penalty, Media freedom, Media regulation, Press freedom, Uncategorized

Tagged as Convergence Review, East Timor, Finkelstein, human rights, Independent Media Inquiry, journalism, Julian Disney, Media Alliance, media regulation, Press Council, RSF, self-regulation, Timor Leste

May 5, 2013 · 3:53 pm

Press freedom, social media and the citizen: My 2013 UNESCO World Press Freedom Day Lecture

By MARK PEARSON (@journlaw)

[This is the full text of my 2013 UNESCO World Press Freedom Day Lecture, delivered at the Pacific Media Centre, AUT University, Auckland on May 3, 2013. Further details, interviews about the material, and vision of the address can be accessed at the PMC’s website.]

Press freedom, social media and the citizen

Mark Pearson*

UNESCO World Press Freedom Day 2013 lecture

Pacific Media Centre, Sir Paul Reeves Building, AUT University, Auckland, New Zealand

May 3, 2013

Firstly I wish to acknowledge the tangata whenua of Tamaki Makaurau and to thank UNESCO, my hosts here at AUT’s Pacific Media Centre and the School of Communication Studies for your hospitality this week.

The Pacific region can lay claim to several ‘press freedom warriors’ over recent decades. It would be a mistake to try to name such individuals in a forum like this because you inevitably leave someone off the list – and they are usually sitting in the very room where you are giving your address!

A ‘press freedom warrior’ is someone who has made a substantial sacrifice in the name of free expression and a free media.

For some, that sacrifice has taken the form of physical injury or danger – perhaps even death. According to the Committee to Protect Journalists, more than 100 journalists died in the course of their work internationally last year, and more than 20 have been killed already in 2013 (CPJ, 2013). Some were relatively close to home in the Asia-Pacific region, with at least 72 Philippine journalists killed over the past decade.

Throughout the Pacific islands, many others have suffered physical violence or have been imprisoned in recent years because of what they have reported.

I also include in my definition of a ‘press freedom warrior’ those who have suffered in other ways because of their commitment to truth-seeking and truth-telling. Some have been the victims of lawsuits and have had to pay damages to those who have set out to gag them. Others have forsaken lucrative positions in government or public relations so they can continue as Fourth Estate watchdogs in preference to becoming political or corporate lapdogs.

We are honored to be in the company of press freedom warriors in this room today or watching via webcast and I ask you to join with me in a round of applause to salute them. [APPLAUSE].

I am not a press freedom warrior. I have made none of these sacrifices. I prefer to describe myself as a “press freedom worrier” – because much of my work has centred upon my public expressions of worry about a continuing array of regulatory, technological, economic, corporate and ethical threats to free expression and a free media.

I shall try to address some of these here tonight and I look forward to some robust discussion afterwards.

Before we proceed too far, however, we need to position the concept of free expression – and its offspring, ‘press freedom’ – in the modern world.

The free expression of certain facts and views has always been a dangerous practice in most societies.

There have been countless millions put to death for their attempted expression of their so-called ‘dissident’ religious or political views throughout history. Many more have been imprisoned, tortured or punished in other ways for such expression.

A classical free expression martyr was Socrates, who in 399 BC was forced to drink hemlock poison by the government of the day because he refused to recant his philosophical questioning of the official deities of the time (Brasch and Ulloth, 1986, p. 9).

It was the invention of the printing press and the burgeoning of the publishing industry over the 16th and 17th centuries in the form of newsbooks and the ‘pamphleteers’ that first prompted repressive laws and then the movement for press freedom (Feather, 1988: 46). It is interesting that these individuals were the forerunners of the citizen journalists and bloggers we know today – often highly opinionated and quick to publish speculation and rumour.

But the pamphleteers took umbrage at government attempts at imposing a licensing system for printers from the mid-16^th century (Overbeck, 2001: 34) Political philosopher and poet John Milton very publicly took aim at this in 1644 with his missive Areopagitica, a speech to the parliament appealing for freedom of the presses. He went on to utter the famous free speech quote (Patrides 1985: 241): “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. “

Milton was an early free press warrior because he boldly inscribed his name on the title page of his unlicensed work, in defiance of the very law he was criticising. So with this series of events the notion of free expression spawned its offspring – press freedom – which we celebrate today.

Of course, the definitive example of that development was the enactment of the First Amendment to the US Constitution as part of the Bill of Rights in 1791. The relevant 14 words would fit comfortably within a modern day 140 character tweet: “Congress shall make no law … abridging the freedom of speech, or of the press.” The US Supreme Court has applied a broad interpretation of those words to an array of writing and publishing scenarios. It has been held to cover the gamut of traditional and online expression, by ordinary citizens, journalists and bloggers – particularly if they are addressing a matter of genuine public concern. But even in the US the First Amendment cannot guard against government erosion of media freedoms, and that nation languishes at number 32 behind Ghana and Suriname on the Reporters Without Borders World Press Freedom Index (RSF, 2013).

In fact, nowhere in the world has there ever been unshackled free speech or a free media. We operate on an international and historical continuum of press freedom or censorship, from whichever perspective you wish to view it.

It is only over the past half century that the notion of free expression and a free media has gained traction on a broader scale internationally.

The key international document is the United Nations Universal Declaration of Human Rights, which in 1948 enshrined free expression at Article 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”

At face value, this statement seems to give all the world’s citizens a right to free expression. But it was only ever meant to be a declaration of a lofty goal and has many limitations.

Stronger protections came internationally in 1966 when the UN adopted the International Covenant on Civil and Political Rights, prompting a series of binding treaties. The covenant introduces a right to free expression for the world’s citizens, again at Article 19: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

It sounds like it was almost written for bloggers and citizen journalists. However, the right is limited because the covenant imposes special duties for the respect of the rights and reputations of others and for the protection of national security, public order, public health or morals. Add to this the fact that many countries have not ratified the covenant and you are left without much real protection at this level. Complaints about individual countries’ breaches can be brought to the Office for the High Commissioner for Human Rights, but the processes can take several years and are often not resolved, as their annual reports demonstrate.

A positive of the UN right was that it fed through into regional conventions and in turn into the laws of their nations. Rights charters exist in Africa, the Americas and Europe and free expression or a free press is guaranteed by the constitutions of many countries internationally.

In the Pacific region we have no such rights charter, although many nations including Papua New Guinea and New Zealand have either constitutional or legislative rights protections for free expression. Pacific Media Centre director David Robie (2004) has critiqued the ease with which governments in Fiji and Tonga have changed such provisions when this has suited their political ends.

Theorists have attempted to group different functions of the press within government systems. Most notable was Frederick Siebert’s Four Theories of the Press (Siebert et al. 1963), which categorised press systems into ‘Authoritarian’, ‘Libertarian’, ‘Soviet-Communist’ or ‘Social Responsibility’. Others have criticised the Siebert approach for its simplicity and outdatedness, with Denis McQuail (1987) adding two further categories: the development model and the democratic-participant model.

Some countries justify their stricter regulation of the press, and limitations of media freedom, on religious, cultural or economic grounds. There has been an ongoing debate about the lack of press freedom in the Asia-Pacific region. Malaysia, Singapore, Brunei and Fiji have state licensing systems in place for their newspapers. Malaysia also has its Internal Security Act 1960, restricting publications on such topics as the position of rulers, the position of Malays and natives, the status of Malay as the national language and citizenship (Syed, 1998: 124).

As Rejinal Dutt noted in 2010, ‘Singaporeans have been led to believe that their model of news media suits the interests of their wider society and that the media’s role is to support the government in its quest to promote harmony, solidarity, tolerance and prosperity, rather than to question the existing social, political and economic structures’ (Dutt, 2010, p. 90). He showed how the Fijian regime had modelled its own approach to media regulation on the Singapore structure in its Media Industry Development Decree (Dutt, 2010).

As a ‘press freedom worrier’ my concerns are not limited to Singapore and Fiji.

My major worry is the ever-increasing government regulation of media and social media everywhere. My observation has been that governments are quick to enact laws to control emerging social and technological situations but are loathe to wind them back when they prove unjust or the reasons for their existence have long gone. Examples of such laws that are an anachronism in the modern era – and still exist in many Pacific nations – are laws of sedition, criminal libel and blasphemy.

Add to these the spate of anti-terror laws introduced since 9/11 and you start to get a potential armory of tools available to governments and their security agencies for surveillance or intimidation of the media.

Even laws endowing journalists with special privileges are worrying because they require a definition of who or what constitutes a ‘journalist’. Shield laws are a good example. At their best they offer journalists sanctuary when being pressed to reveal their confidential sources in court. However, the downside is that a shield law for journalists requires a court to deem who is, or is not, a ‘journalist’ – a process which, when taken to its extreme, can constitute a licensing system.

It is even more problematic now that citizen journalists and bloggers are covering stories of public importance when they might not meet a government’s definition of ‘journalist’.

As a press freedom worrier I am also concerned by the technological intrusions into free expression and a free media. As an avid blogger and social media user I can attest to the utility and reach of these media and we have seen via the Twitter revolutions in North Africa how social media can be a useful tool for dissident mobilization in autocratic regimes.

Web 2.0 communication has further empowered ordinary citizens who can now publish at their whim in the form of blogs, tweets, podcasts, Facebook postings and Instagram and Flickr images. Citizen journalists can crowdsource funding for important stories and not-for-profits can operate their own news platforms to compete with the legacy media.

Yet at the same time the Internet has given audiences and advertisers so many new choices that the financial model of those traditional media is under chronic stress. The important Fourth Estate journalism once funded by the ‘rivers of gold’ in the form of classified advertising to newspapers has all but lost its funding base.

Investigative reporting calling governments to account does not come cheaply. It involves weeks of groundwork by senior journalists, photojournalists and videojournalists and funding of their salaries, travel expenses and equipment. It typically requires further investment in the time of expert editors and production staff.

But the former multinational newspaper companies that once funded this investigative enterprise have been shedding staff, rationalizing operations and slashing budgets. There is a ripple effect throughout the Pacific of the impact of such measures in major Australian, New Zealand and North American newsrooms.

It is not just their domestic investigative reportage that suffers – but also their international reportage and foreign correspondence. This means the policies of governments in Pacific island nations are exposed to less international scrutiny and that breaking news is more likely to be covered ‘on the cheap’ by so-called ‘parachute journalists’ who fly in and out to report in a superficial way.

An unfortunate byproduct of the financial demise of big media is that they no longer have the deep pockets to fund the lobbying for media freedom they have conducted over recent decades. Tighter budgets mean less funding for submissions to government opposing media threats, appeals to higher courts on points of law and free press principle, and a greater tendency to settle out of court to reduce court costs and potential exposure to higher damages. Bloggers and citizen journalists are left stranded without the resources to defend legal threats unless they can garner the support of a union or an international NGO.

Another downside to the technological revolution is the level of surveillance of the journalistic enterprise available to governments and their agencies. Anti-terror laws introduced internationally – modeled on the US PATRIOT Act – typically give intelligence agencies unprecedented powers to monitor the communications of all citizens.

There is also an inordinate level of surveillance, logging and tracking technologies in use in the private sector – often held in computer clouds or multinational corporate servers in jurisdictions subject to search and seizure powers of foreign governments.

This has disturbing implications for journalists’ protection of their confidential sources – typically government or corporate ‘whistleblowers’ who risk their reputations, jobs and even lives if they reveal information to reporters. I blogged recently asking whether the Watergate investigation could even happen in this modern surveillance era because it was premised upon the absolute confidentiality of the White House source known as ‘Deep Throat’ (recently revealed as FBI executive Mark Felt) (Pearson, 2013). Today the Washington Post reporters Carl Bernstein and Bob Woodward and their secret source would have to contend with geo-locational tracking of their phones and vehicles, tollpoint capture of their motorway entry and exit, easily accessible phone, email and social media records, CCTV in private and public places, and facial recognition in other people’s images, perhaps posted to Facebook. The use of new technologies like drones and Google Glass will equip journalists with significant newsgathering capabilities but will at the same time risk further compromising the identities of their confidential sources.

All this might sound terribly pessimistic, but despite my ‘press freedom worrier’ status I am actually an inherent optimist, although probably not quite as hopeful as the stated theme for today’s UNESCO World Press Freedom Day – “Safe to speak: Securing freedom of expression in all media”. While we might aim to secure the ideal of freedom of expression in all media it can only ever be an aspiration – there is always a looming threat of censorship in even the most liberal societies.

Perhaps it is time for a new approach to media ethics and regulation. While I do not approve of the Malaysian, Singaporean and Fijian application of the ‘development model’, I am not sure the libertarian model strongly identified with British and US media in the 20^th century is the only workable approach.

Winston Churchill once described democracy as the ‘least worst’ option? (House of Commons, 11 November 1947). Is the libertarian model of press freedom also the ‘least worst option’? Or can we have press freedom within some other system of regulation, implying a different ethical framework for truth seeking and truth telling?

There is no doubt that press freedom is entrenched in the libertarian traditions of western democracies and it is sometimes seen as another feature of colonialism that has been imposed upon societies – including those here in the Pacific – as a compulsory add-on to democracy.

But that implies that truth-seeking and truth-telling can only be part of Western culture, and that is clearly not the case.

My very first academic article in 1987 took up the issue of information sharing in indigenous Australian societies and questioned whether the techniques of modern journalism were well suited to interviewing and reporting upon indigenous issues. Information exchange in indigenous societies had cultural implications related to the status of the parties involved and the period of time allowed for the communication process (Pearson, 1987).

Veteran New Zealand journalism educator Murray Masterton had already noted codes of practice within Samoan society, where in some situations it was even a taboo to ask a question of an individual with a higher social status (Masterton, 1985, p. 114). Countering that, Samoa also had the tradition of the revered ‘tusitala’ or ‘story teller’ – the name conferred on the great author Robert Louis Stevenson when he lived there for the four years before his death in 1894 (Spencer, 1994, p. 7-A).

Papuan tribal societies also valued communication highly and can in some ways be seen as the consummate news reporters through their use of the garamut and the smaller kundu drum to send clear and simple messages across hilltops and through dense jungle. However, journalists in Papua New Guinea face challenges through their own cultural practices of wantok and payback which imply both an obligation to members of their own social network and retribution against others for wrongs done to their kin (Trompf, p. 392). It renders the roles of whistleblower and investigative reporter even more isolating and socially reprehensible despite a clear constitutional guarantee of a free media in that nation’s constitution.

When used to describe approaches of governments to media regulation, the libertarian model has been most commonly associated with the private ownership of newspapers and their active watchdog role as the Fourth Estate in a Western democratic society. Even liberal democratic societies have adopted a ‘social responsibility’ approach to the regulation of broadcast media, given the public or collective interest in control of a scarce resource, given the traditionally limited number of radio and television frequencies available for allocation (Feintuck & Varney, 2006, p. 57).

Recent inquiries into media regulation in the UK (Leveson, 2012), Australia (Finkelstein, 2012) and New Zealand (Law Commission, 2013) have proposed extending that social responsibility model to print and new media regulation, despite the fact that the scarcity of resource argument is diminishing. Rather than taking a libertarian approach and reducing the government regulation of the broadcasters because the frequency scarcity and media concentration arguments are diminishing, the reform bodies have recommended mechanisms to bring newspaper companies within the ambit of stronger government control.

Their motivation for doing so stems from public angst – and subsequent political pressure – over a litany of unethical breaches of citizens’ privacy over several years culminating in the News of the World scandal in the UK with an undoubted ripple effect in the former colonies. I am at grave risk of over-simplifying this important issue because many other factors are at play, including some less serious ethical breaches by the media in both Australia and New Zealand, evidence of mainstream media owners using their powerful interests for political and commercial expediency, and the important public policy challenge facing regulators in an era of multi-platform convergence and citizen-generated content.

So press systems and ethical frameworks are on the agenda in all societies, and we are challenged to accommodate free expression and its close relative press freedom within new technological and cultural contexts.

If we are to stick with the libertarian model and continue with ‘light touch’ media regulation by governments, we clearly need more meaningful ethical guidelines than the ones that do not always seem to work in mainstream journalism.

Pacific Media Centre director Professor David Robie (2011, p. 237) has been among those exploring how a ‘peace journalism’ model could be applied to the reporting of conflict in the South Pacific and to the education of journalists in this region. It requires a deeper understanding of the context and causes of a conflict, a commitment to ensuring the views of all sides are reported, comments from those condemning any violence, reducing emphasis on blame or ethnicity, and offering suggestions for solutions.

This kind of approach has great merit – and I am currently examining ways it might be extended to a new framework for reporting more generally by implementing some of the key principles of the world’s great religions in a secular context. When you look closely at Christianity, Islam, Hinduism, Confucianism and Buddhism you find common moral and ethical principles that we might reasonably expect journalists to follow in their work, including all of those attributes of peace journalism identified by Robie. The Dalai Lama’s recent book – Beyond Religion – explores how core ethical values can offer a sound moral framework for modern society while accommodating diverse religious views and cultural traditions.

I believe this sits well with a modern trend to apply basic principles of mindfulness and compassion to a range of human endeavors and I will be exploring and applying this to journalism in a conference paper I will be presenting in Dublin next month where I call it ‘Mindful Journalism’. It suggests we should educate journalists, serious bloggers and citizen journalists to adopt a mindful approach to their news and commentary which requires a reflection upon the implications of their truth-seeking and truth-telling as a routine part of the process.

They would be prompted to pause and think carefully about the consequences of their reportage and commentary for the stakeholders involved, including their audiences. Truth-seeking and truth-telling would still be the primary goal, but only after gauging the social good that might come from doing so.

The recent inquiries into poor journalism ethics have demonstrated that journalism within the libertarian model appears to have lost its moral compass and we need to recapture this.

Even today, young people choose journalism as a career with a view to ‘make a difference’ in society. Like teaching and nursing, the choice of the occupation of truth-seeking and truth-telling in our societies has an element of a ‘mission’ or a ‘calling’ about it. I this in a secular rather than a religious way – a deep sense of social responsibility to expose wrongdoing and injustice and to facilitate the exchange of ideas on important social issues.

All societies need their ‘tusitalas’ – their storytellers – in whatever form they might take.

With the advent of citizen journalism and the widespread use of social media we can no longer claim this as the exclusive preserve of journalism and journalists.

Social media and blogging seems to have spawned an era of the new super-pamphleteer – the ordinary citizen with the power to disseminate news and commentary internationally in an instant.

We are quickly losing the distinction between journalists and other communicators, accelerated by the fact that their traditional employers forcing journalists into the blogosphere as the old model suffers under the strain. Journalists’ codes of ethics have long been associated with the traditional mainstream media and have usually been documented and administered by unions or professional associations. But we now have many ordinary citizens producing the reportage and commentary that was once the preserve of those who called themselves ‘journalists’. We need new ethical codes of practice that are inclusive of these new serious bloggers and citizen journalists.

The printing press spawned free expression’s offspring – the right of ‘press freedom’ – as pamphleteers fought censorship by governments in the ensuing centuries.

Events are unfolding much more quickly now. It would be an historic irony and a monumental shame if press freedom met its demise through the sheer pace of irresponsible truth-seeking and truth-telling today.

Our challenge is to educate our fellow citizens on the mindful use of this fragile freedom before their elected representatives take further steps to erode it.

—-

* Professor of Journalism and Social Media, Griffith University, Australia and Australian correspondent for Reporters Without Borders

REFERENCES

Brasch, W.M. & Ulloth, D.R. (1986). The Press and the State: Sociohistorical and Contemporary Interpretations. Lanham: University Press of America.

CPJ (2013). Committee to Protect Journalists – Defending Journalists Worldwide. Retrieved from http://www.cpj.org/killed/2012/.

Dalai Lama, (2011). Beyond Religion – Ethics for a whole world. London: Rider.

Dutt, R. (2010). The Fiji media decree: A push towards collaborative journalism. Pacific Journalism Review, 16(2): 81-98.

Feather, John (1988). A History of British Publishing. London: Routledge.

Feintuck, M. and Varney, M. (2006). Media Regulation, Public Interest and the Law, second edition. Edinburgh: Edinburgh University Press.

Finkelstein, R. (2012). Report of the independent inquiry into the media and media regulation. Canberra: Department of Broadband, Communications and the Digital Economy.

Law Commission (NZ) (2013). The news media meets ‘new media’: rights, responsibilities and  regulation in the digital age.  (Law Commission report 128). Law Commission: Wellington.

Leveson, B. (2012). Report of An Inquiry into the Culture, Practice and Ethics of the Press (The Stationery Office, 2012) [Leveson Report].

Masterton, M. (1985). Samoa, where questioning is taboo. Australian Journalism Review 7 (1&2): 114-115.

Pearson, M. (2013, April 26). Surveillance and investigative reporting: How would Deep Throat stay anonymous today? Journlaw.com blog. Retrieved from: jourlaw.com/2013/04/26/surveillance-and-investigative-reporting-how-would-deep-throat-stay-anonymous-today/

Pearson, M. (2012). The media regulation debate in a democracy lacking a free expression guarantee. Pacific Journalism Review, 18(2): 89-101.

Pearson, M. (1987). Interviewing Aborigines: a cross-cultural dilemma. Australian Journalism Review, 9 (1&2): 113-117.

Robie, D. (2011). Conflict reporting in the South Pacific – Why peace journalism has a chance, The Journal of Pacific Studies, 31 (2): 221–240. Retrieved from: http://www.academia.edu/1374720/Conflict_reporting_in_the_South_Pacific_Why_peace_journalism_has_a_chance

Robie, D. (2004). The sword of Damocles in the South Pacific: Two media regulatory case studies. Pacific Journalism Review, 10(1): 103-122. Retrieved from http://www.pjreview.info/articles/sword-damocles-south-pacific-two-media-regulatory-case-studies-617

RSF. (2013). Reporters Without Borders World Press Freedom Index. Retrieved from http://en.rsf.org/press-freedom-index-2013,1054.html

McQuail, D. (1987) Mass Communication Theory: An Introduction. London: Sage Publications.

Siebert, F.S., Peterson, T. & Schramm, W. (1963) Four Theories of the Press. Urbana: University of Illinois Press.

Spencer, G. (1994). Samoa rediscovers ‘Tusitala’ Stevenson. Daily News (Bowling Green, Kentucky). July 19, p. 7A.

Syed, Arabi Idid (1998) Malaysia. In Asad Latif (ed.) Walking the Tightrope: Press Freedom and Professional Standards in Asia. Singapore: Asian Media Information and Communication Centre, pp. 119–27.

Overbeck, Wayne (2001) Major Principles of Media Law, Fort Worth, TX: Harcourt College Publishers.

Patrides, C.A. (ed.) (1985) John Milton: Selected Prose, New and Revised Edition. Columbia: University of Missouri Press.

Trompf, G.W (1994). Payback: The Logic of Retribution in Melanesian Regions. Cambridge University Press: Cambridge.

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

3 Comments

Filed under free expression, Media freedom, media law, Media regulation, Press freedom, Uncategorized

Tagged as AUT, free expression, Griffith University, media freedom, media law, Pacific Media Centre, PMC, Press Council, regulation, Reporters Without Borders, RSF, RWB, UNESO, World Press Freedom Day

March 28, 2013 · 11:57 am

Narrow escape for a fragile freedom #medialaws

By MARK PEARSON (@journlaw)

[Here is a taste of my commentary in The Conversation today.]

It is just a week since the Gillard government withdrew the four media reform bills for which it could not garner the necessary support from the crossbench MPs.

The proposal that concerned me most as a media law scholar and free expression advocate was the News Media (Self-regulation) Bill. This would have given an individual the power to deregister bodies, like the Australian Press Council, if they failed to police effectively the ethical standards of their newspaper and online members.

The big stick the so-called Public Interest Media Advocate would have wielded was the withdrawal of media companies’ journalism exemption from the Privacy Act – a penalty that stood to send newspapers broke through its demands of bureaucratic compliance. I detailed this problem in a blog republished on The Conversation last week, describing it as a defacto form of licensing. Many vested political and commercial interests were at stake in this debate.

There are lessons for all to learn from the events of the past fortnight and from the broader media regulation debate of the preceding year. Free expression is often described as a “fragile freedom”, perpetually at risk in a democracy like Australia where it lacks any explicit constitutional protection.

It is a mistake to view free expression through the lens of your own political allegiances. My observation after more than two decades researching in the area and several years as Australia’s correspondent for Reporters Without Borders, is that governments of all political persuasions can present major threats to media freedom.
…
This week’s blog was commissioned by The Conversation. Read more at http://theconversation.com/media-reforms-lessons-from-a-narrow-escape-to-a-fragile-freedom-13123

Leave a comment

Filed under media law, Media regulation, Uncategorized

Tagged as Conroy, free expression, media freedom, media law, Murdoch, News Limited, Press Council, regulation

March 20, 2013 · 12:16 pm

Press regulatory ‘stick’ so tough it’s licensing #mediareforms

By MARK PEARSON (@journlaw)
It’s a great shame when political and commercial vested interests drown out compelling and principled arguments for free expression in this Australian media reform debate.
Firstly, I declare my own interest as Australia’s correspondent for Reporters Without Borders (RSF) – an interest in free expression and media freedom.
That said, here are my three reasons the proposed Public Interest Media Advocate proposal for control of press regulation deserves a sudden death.
1. It amounts to de facto licensing. I don’t believe the plan was sinister or Stalinist – I just don’t think the policy wonks looked at the impact of the ‘stick’ end of the ‘carrot and stick’ approach to ‘enforced self-regulation’. As I blogged last week, it would mean ‘death by a thousand consent forms’ for any newspaper/online company who refused to sign up (with $3m plus turnover). Why? The Privacy Act exemption for journalism exists for good reason: the Act is designed for government departments, banks, insurance companies and other large corporates and we all know that journalism is not “just another business”. Those bodies have predictable dealings with customers and are not in the business of publishing stories about them. The revised Privacy Act – effective from 2014 – gives the Privacy Commissioner tough new powers to audit corporations, wielding civil penalties of up to $1.7 million (See Mallesons brief). A relatively small newspaper group would reach the required $3 million annual turnover threshold to qualify and would be crippled by the paperwork involved in complying with the Privacy Act – consent authorities for all personal information collected – the very lifeblood of community news reporting such as people’s ages, workplaces, political and union affiliations. It would require consent from anyone identifiable in photographs – including those in the background. It would thus set up a statutory market differentiation between such a news organisation and its competitors – other media not subject to the Act, including newspaper groups in a press council, broadcast media not subject to this provision, and smaller media of all types exempt from the Privacy Act threshold. Law firm Minter Ellison issued a release on March 14 with the following stark advice: “The potential loss of the media exemption in the Privacy Act could make it difficult, if not impossible, for news media organisations to effectively continue their operations.”
So, it’s not a ‘stick’ but a shotgun to the head of newspaper companies to be in a registered press council or be out of business. That’s licensing – and ‘prior restraint’ on a news outlet’s ability to publish – a situation abhorrent to our system of law for centuries.
2. The Bill’s very terms are self-defeating and damage free political speech. Section 14 of the Bill proclaims that nothing within it should counter the High Court’s freedom to communicate on matters of politics and government. But the very mechanism does that in two ways. Firstly, the overall effect is to force newspaper companies into a regulated ‘self-regulator’. The alternative, as per point 1 above, is almost certain death. Newspapers have long been a key forum for political and governmental debate in our society. How informed about candidates for the upcoming election would voters in Tamworth be without their Northern Daily Leader and its website? Well, that would be the plight that community would face if its owner – Fairfax – decided to leave the Press Council on principle, could no longer afford the membership fee, or was expelled. Secondly, the very Privacy Act that is being held as the threatened ‘stick’ deems ‘trade union membership’ and ‘political affiliation’ as ‘sensitive information’ – subject to even more red tape. The mechanism forces a recalcitrant news organisation into a disadvantaged position in its election coverage because its hands would be tied by this level of bureacratic compliance. This would mean – at the very least – that the flow of political and government opinion in the community would be unacceptably delayed by privacy consent paperwork. Imagine the impact of such a brake on the web-based and social media divisions of such a newspaper – getting consent from everyone identifiable through a comment thread! This would give ample ammunition for a High Court challenge.
3. The instrument has already damaged Australia’s standing as a free Western democracy. We have no written constitutional free expression protection, which sets us apart from other democracies. Both Communications Minister Stephen Conroy and Prime Minister Julia Gillard cited RSF’s World Press Freedom Index in recent days, using the argument that Finland is in number one position there despite having a statutory mechanism for its press regulation. Perhaps – but Finland also has a section in its Constitution guaranteeing free expression and the free flow of information so all laws are formed and applied against that backdrop. It also lacks the hundreds of other media laws impacting on free expression that we have in this country which place us at number 26 on that same Index. We languish there partly because of the very threats to media freedom posed by the recent inquiries into its regulation. The UK’s latest move is also set against a European human rights free expression framework and is a reaction to much more heinous media acts than we have seen in this country. Australia has spent millions over recent decades ‘counselling’ our Pacific Island and Asian neighbours against exactly these kinds of government interference with a free media – in the form of AusAID training courses and other diplomatic interventions. Now we send the clear signal that the Australian government is willing to offer a handy lesson in managing adverse publicity – using a cynical device to subject non-compliant newspapers to death by red tape.
There you have it – a vent from someone whose only agenda is to encourage truth-seeking and truth-telling in our society through the long-established right of free expression. Oh, I do have another agenda – preserving an employment market for journalism graduates. And it looks like that challenge may get even harder!

PS. Find an inaccuracy here and I’ll correct it immediately and record that correction in a note below.

1 Comment

Filed under Media regulation

Tagged as censorship, ethics, Finkelstein, media law, media regulation, Press Council, press freedom, RSF

March 14, 2013 · 6:06 pm

‘Self-regulation’ oxymoron heralds the era of ‘death by a thousand consent forms’ #mediareforms

By MARK PEARSON Follow @Journlaw

The oxymoron in the name of the proposed media reform legislation says it all: It is the “News Media (Self-regulation) Bill 2013”. (See here).

Here we have a piece of legislation proposing a statutory mechanism for the supervision of industry-based self-regulation of print and online news media.

That, dear readers, is “regulation”.

Just as it is troubling when proposed legislation purports to be what it is not, it is of even greater concern when a government moves to rush such laws through Parliament in just one week.

This blog is about media and social media law and regulation and their impact on free expression – not about politics.

But it is politics that has cruelled this whole media regulation review over the past 18 months.

The Independent Media Inquiry, chaired by former Federal Court justice Ray Finkelstein, was mired in politics when it was announced in late 2011 against the backdrop of both Labor and Greens stoushes with Murdoch titles.

And it seems to be politics that is now driving the desire to enact ‘something’ in the life of this government.

But that ‘something’ is problematic on a range of measures.

The basic ‘self-regulatory’ proposal is that a Public Interest Media Advocate be appointed with the power to declare bodies like the Australian Press Council to be a suitable ‘news media self-regulation body’.

If such bodies do not meet the government-appointed Advocate’s criteria, their member media outlets would be stripped of their current Privacy Act exemptions – leaving them exposed to potential privacy compensation orders and a bureaucratic reporting regime that would cripple their news operations.

At present, media organisations just have to be signed up to the Press Council or an equivalent body and be ‘publicly committed to observe’ its privacy standards.

If a media company falls foul of the self-regulator, refuses to join one, or joins one that does not meet the requirements, then the new Public Interest Media Advocate would have the power to strip them of their Privacy Act exemption under Section 7B(4) – leaving them obliged to follow all the privacy protocols associated with ‘obtaining, keeping and disclosing of personal information’ related to any of their stories and photographs.

This would leave the newspaper or online news company having to get every person in a group photograph to sign consent forms and to refrain from publishing sensitive personal information about people like their financial dealings, medical conditions, employment history and a host of other material commonly appearing in news stories.

They would also have to go to the expense of safely storing all the personal information they gathered for news reports and deal with requests from individuals who might want to withdraw their permission for them to retain that information about them.

There is no ‘public interest’ exemption to this requirement under the Privacy Act – other than formally seeking a ‘public interest determination’ from the Privacy Commissioner in a specific case.

Of course, there may be other protections for investigative reporters – perhaps the permission to publish details already released under the privacy provisions of Freedom of Information laws, and of course privileges extending to material tabled in court or Parliament.

There might also be an argument that the High Court’s implied freedom to communicate on matters of government and politics might apply to some private information in limited circumstances, although recent decisions from that court seem to render that freedom problematic and dependent on the views of individual judges.

There is a long principle ‘against prior restraint’ in our legal system – shackles by governments and courts to stop the news media before they have the opportunity to publish something.

The most famous example were the attempts in earlier centuries to license the printing presses – government measures opposed by famous statesmen and jurists like John Milton, John Stuart Mill and our own colony’s first Chief Justice, Sir Francis Forbes.

This proposal is for a system of de facto licensing because the statutory alternative to joining the self-regulatory regime would almost guarantee financial ruin for a newspaper company in this environment, when they are already facing huge challenges retaining readership and winning advertising in the Web 2.0 era.

The Privacy Act provisions would only apply to media companies earning more than $3 million per year – which is the threshold for corporations – and the proposed bill also offers a ‘small business’ exemption to its requirements.

This would potentially leave us with a two-speed news media – small operators, bloggers, citizen journalists and social media users sharing private information willy-nilly while larger news organisations falling outside the ‘self-regulatory’ regime are left to expend valuable time and resources filling out all that privacy paperwork.

Unlike other Western democracies, Australia has no written constitutional protection of free expression in the form of a Bill of Rights or a regional human rights document. The explanatory notes to the proposed laws go through the usual routine of giving a ‘Statement of Compatibility with Human Rights’, in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

But the imposition of the proposals on free expression is dispensed with in just three paragraphs excusing it because of its capacity for respecting the privacy and reputations of other citizens.

There is no doubt Australia’s media self-regulation can be improved, and there is even scope for some fine-tuning of media laws.

It is also evident that the Australian Press Council has markedly improved its systems and funding under the leadership of its chair, Professor Julian Disney.

There are already several hundred media laws in this country – enough to fill at least three major journalism textbooks in the field and several more in the specialist areas of torts, criminal law and intellectual property.

Even a tort of privacy invasion with a strong public interest exemption for journalism would be preferable to this proposal for a system of ‘death by a thousand consent forms’ for struggling news organisations who should have the right to be lone wolves and refuse to play the government’s game.

Call it what you like, but this Bill is not ‘self-regulation’.

14 Comments

Filed under Uncategorized

Tagged as Australian media, censorship, Conroy, consumer law, convergence, Finkelstein, free expression, journalism, law, media, media inquiry, media law, media reforms, News of the World, Press Council, press freedom

October 7, 2012 · 3:59 pm

The media regulation debate in a democracy lacking a free expression guarantee

By MARK PEARSON Follow @Journlaw

The latest edition of Pacific Journalism Review is out – a special issue edited by Chris Nash, David Robie and Johan Lidberg on ‘Rebuilding Public Trust’.

My contribution carries the same title as this blog. Here are the abstract and conclusion, but if you’re really interested you’ll need to get PJR for the body of the article and the references – and, of course, another 13 articles by some of the region’s top journalists and researchers.

Abstract

Two major inquiries into the Australian news media in 2011 and 2012 prompted a necessary debate over the extent to which rapidly converging and globalised news businesses and platforms require statutory regulation at a national level. Three regulatory models emerged – a News Media Council backed by recourse to the contempt powers of courts; a super self-regulatory body with legislative incentives to join; and the status quo with a strengthened Australian Press Council policing both print and online media. This article reviews the proposals and explores further the suggestion that consumer laws could be better utilised in any reform. It concludes with an assessment of the impact of the inquiries and their recommendations upon free expression in a Western democracy lacking constitutional protection of the media.

——

Conclusion

The Convergence Review report cleverly proposed the removal of some existing protections instead of the imposition of draconian new regulations, but then failed to flesh out their possibilities. It needed to position its mechanism of privacy and consumer law exemptions for signatories to its new pan-media self-regulatory body as much more than hypothetical and to detail its plans for the implementation of these proposals.

Australia already has one statutory regulator with powers to punish ethical transgressions – the Australian Competition and Consumer Commission (ACCC). In an era of increasingly commercialised and converged media, it seems reasonable that at least some forms of irresponsible journalism might be addressed via the legislative mechanism prohibiting misleading and deceptive conduct by any corporation against media consumers.

Such a legislative solution already exists, as identified by the Convergence Review – and it only requires an amendment to the existing news organisation immunity from prosecution under the ‘misleading and deceptive conduct’ provisions at Section 18 of the Competition and Consumer Act 2010. The proposal to take away media exemptions from prosecution under this section would leave them accountable for misleading and deceptive claims and behaviour in their editorial functions.

While misleading and deceptive conduct does not take in all unethical behaviour by news organisations or the journalists who act as their agents, it could well be read to cover such sins as lies, inaccuracy, subterfuge, and lack of verification of the false claims of others. The amendment would mean both the ACCC (and private citizens) could launch prosecutions over such behaviour, with the force of the regulatory powers it already holds. The key to this would be an amendment of the ‘prescribed information provider’ exception (Section 19) so that news organisations would no longer have the blanket, almost unchallengeable protection for misleading and deceptive conduct which was introduced after their lobbying in the late 1970s and early 1980s. They would only earn this exemption if they were signatories to the new self-regulatory body and abiding by its requirements.

I have previously backgrounded this news media exemption to consumer law provisions under the predecessor to the existing legislation, the Trade Practices Act 1974 (Pearson, 2000). The media operated for more than a decade under that law without special exemptions from its misleading and deceptive conduct provisions. In 1984, Section 52 (the ‘misleading and deceptive conduct’ clause under the TPA) caused concern in the case of Global Sportsman v. Mirror Newspapers (1984) 2 FCR 82 when it was held that the publication of statements – including statements of opinion made in the ordinary course of news – could constitute conduct which was “misleading or deceptive”.

Successful lobbying by the media led to the government of the day introducing the exemption from the provision for “prescribed information providers” unless the deception occurred in relation to the publication of advertisements or in articles promoting the information providers’ own commercial interests. “Prescribed information providers” included “…a person who carries on a business of providing information” and included obviously newspapers, holders of broadcasting licenses, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service Corporation (SBS).

The exemption – known as the ‘media safe harbour’ – acknowledged the fact that news organisations could not vouch for every claim made by those quoted in their news columns or stories (Applegarth, 2008). However, the instant news material was sponsored, or run in return for some compensation in cash or kind, or was used to promote the news organisation’s own operations (such as in a promo), it fell within the Act and left any misleading content open to prosecution of the media proprietor.

This rendered journalists and their organisations particularly vulnerable in the realm of advertorials, if it could be shown that space had been devoted to the promotion of a company’s products or services just because they happened to be advertising or they had reached some arrangement or understanding with some corporation to that effect.

If such claims were proven to be misleading or deceptive the media outlet was held responsible and could face an injunction preventing publication or a damages claim from those adversely affected.

The provision raised serious questions about media companies’ cross-promotion of their related corporate interests, particularly in an age where concentrated conglomerates had substantial shareholdings and sponsorships across industries. The exemption has been struck down by superior courts in two recent cases. The High Court found against a media organisation under the former Trade Practices Act in ACCC v. Channel Seven Brisbane Pty Ltd [2009] HCA 19. That decision related to false claims on the tabloid television current affairs program ‘Today Tonight’ about goods and services. The reform would extend this to other ethical breaches. The NSW Court of Appeal had earlier ruled that Nine’s ‘A Current Affair’ did not qualify for the exemption over misleading claims made by their staff who posed as prospective customers in an expose of a home construction company. Their false claims were made in the course of their investigation – not while carrying on the business of providing information – and they had failed to reveal that they were in the information provision business during their inquiry. As Justice Applegarth has noted: “Statements made in the course of an investigation are said to lack such correspondence because they do not occur ‘in the course of carrying on’ a business of providing information.” (2008, p. 3).

Of course, the consumer laws apply to corporations rather than individuals, so journalists themselves would not be liable personally, well exemplified in the Current Affair case cited above. However, it is likely their employer organisations would pressure them to comply when faced with the prospect of ACCC prosecutions and contempt charges for disobeying any resulting orders.

The Convergence Review’s suggestion that a similar ‘carrot’ be applied to the exemptions to privacy law is more problematic. The ‘Journalism’ exemption to the Privacy Act 1988 at s. 7B(4) references privacy standards issued by the Australian Press Council as newspaper organisations’ ticket to a waiver (APC, 2011). Media organisations simply have to avow they are ‘publicly committed to observe standards’ on privacy as documented by their representative organisation. However, the proposed reform would require more of them than simply being ‘publicly committed to observe standards’ and to have published them.

If they refused to sign up for the Convergence Review’s ‘self-regulator’ they would have to follow in their journalism all of the privacy protocols applying to other corporations and marketers. Permissions would need to be sought and documented every time a citizen was named or identified visually in a news story or column and every time ‘private’ details about them and their lives were being published. It would be a logistical nightmare for a news organization. There are already a myriad of laws of defamation, trespass, data protection, surveillance, confidentiality, discrimination, consumer law, stalking, court publishing restrictions, suppression orders and copyright controlling the news media’s handling of private information. The recommendation comes at a time the government is also considering a proposal for a ‘statutory cause of action for a serious invasion of privacy’ – giving citizens the right to sue over a privacy breach and receive either an award of damages or an injunction to stop publication. If the statutory tort were introduced, then the removal of the Privacy Act exemption for media companies would appear to be overkill given the array of other laws in the field.

Reactions to the suggestion of a statutory regulator have certainly been strident and at times histrionic. Assistant to the Finkelstein inquiry, Professor Matthew Ricketson, responded in The Age to accusations that “… we would all be living in Stalinist Russia or even Hitler’s Nazi Germany with its Reich Press Chamber if the government acted on this recommendation”. He continued:

Really? What is actually recommended differs from the existing system in only one key aspect, namely government would fund the News Media Council. (Ricketson, 2012).

While he quite rightly took offence at such reactive rants, Ricketson was wrong to suggest that government funding of his proposed News Media Council was the only point of difference from the status quo.

Arms-length government funding of a self-regulator certainly sounds some alarm bells, but there may well be mechanisms to secure its independence, just as the ABC is publicly funded yet independent. The greater concern is with the body’s ultimate power to refer disobedient media outlets to courts with the distinct possibility they might face fines or a jail term if they continued to disobey the council’s order. Such powers place strong emphasis on the word ‘enforced’ in Finkelstein’s system of ‘enforced self-regulation’ and pushes it a long way towards the full government regulation its critics fear. The proposal would effectively convert ethical codes into laws – ultimately enforceable in the courts.

This has certainly been a long overdue debate in Australia, but it has occurred in a politicised context that has been counter-productive and has undermined the likelihood of the implementation of any of the proposals. Several academics and small publishers stepped up to give the Finkelstein model their approval (The Conversation, 2012). Labor and Greens applauded it and pushed for its enactment, having demanded such an inquiry in the midst of the News of the World scandal in the UK and continued adverse coverage about them in News Limited publications locally (Kitney et.al, 2012).

Criticism of the recommendations by the larger media groups on free expression grounds were dismissed as a defence of their vested interests. It surprised nobody that News Limited chief executive Kim Williams opposed statutory regulation (Meade and Canning, 2012), but such pigeon-holing of Finkelstein’s serious critics is misplaced. History is littered with examples of politicians withdrawing citizens’ rights to free expression because they did not like what they had been saying about them at a particular moment in history.

And, while the concerns of the Left at Murdoch media treatment might have helped trigger the inquiries, despite public protestations against the proposals by Opposition figures (Kerr, 2012), it is questionable whether a Conservative government would act to dismantle a new statutory regulator and its ‘independence’ could well be tested. The Howard conservative government lacked an impressive free expression record. It famously appointed arch conservatives to the ‘independent’ ABC board, ramped up anti-terror laws and cynically exploited exemptions to freedom of information requests. That government’s foreign minister, Alexander Downer, confessed to newspaper publishers in 2006: “Freedom of information always seems a great idea when you are in Opposition but less so when you are in Government” (McNicoll, 2006).

The Australian Press Council – with a suitable name change – could become an effective pan-media self-regulator and fulfil similar functions to the one proposed by the Convergence Review. That review’s suggestion of encouraging membership with the carrot of consumer law exemptions is also a mechanism worth considering.

A uniform code of practice across all news media is a vital reform. It is essential that media outlets and journalists conform to ethical codes. It is in their interests that they do so, because it is these very ethical standards that distinguish them from the many new voices seeking audiences in the new media environment. But Australia has a confusing array of self-regulatory and co-regulatory documents guiding ethical standards of journalists and their outlets. No single journalist could possibly be expected to understand and operate effectively within deadline, paying heed to all that might apply to him or her, including the MEAA Code of Ethics, an in-house code, an industry code and the related laws and formal regulations that might apply.

This moots strongly for a single code of ethics applying to journalists and their employers across all media, similar to the existing MEAA Code of Ethics, addressing fundamental principles of truth, accuracy, verification, attribution, transparency, honesty, respect, equity, fairness, independence, originality and integrity, with exceptions only for matters of substantial legitimate public concern. Of course, this could be supplemented by industry or workplace ‘information and guidance’ documents to help explain to journalists and editors the fact scenarios and precedents applying to a particular medium or specialty, along the lines of the Australian Press Council’s guidance releases. As Ricketson (2012) has suggested, media outlets need to be more pro-active in developing better in-house processes for assessing ethical decisions and in explaining those decisions to their audiences. All reforms will, of course, need to be supplemented with better training of journalists about their rights and responsibilities and broader education of ordinary citizens to raise their level of media literacy.

Australia is rare among Western democracies in that it does not have free expression or media freedom enshrined in its Constitution and no federal bill of rights with such a protection. Other countries like the UK and New Zealand proposing similar regulating mechanisms have free expression as an explicit right informing their jurisprudence. The closest Australia has come to any such protection came in a series of decisions through the 1990s, starting with the Australian Capital Television Pty Ltd v. Commonwealth and Nationwide News v. Wills cases in 1992, where the High Court introduced and developed a so-called “implied freedom to communicate on matters of politics and government”. The court held this principle was fundamental to the system of representative government, but it demonstrated recently in Wotton v. Queensland (2011) that it was in no rush to progress this implied freedom. The Australian Capital Territory and Victoria have enacted limited charters of rights in the form of human rights acts, both of which enshrine free expression at the state and territory level, but neither applies to other jurisdictions and each is problematic even in its application in to its own jurisdiction (Pearson and Polden, 2011, pp. 38-39).

The lack of any formal written guarantee of a free media makes proposals for statutory regulators even more of a threat to democracy in Australia than in most comparable nations and this fact did not appear to weigh heavily enough with the architects of the Finkelstein report or those who rushed to support it. ‘Enforced self-regulation’ is not a suitable solution – at least not until free expression earns stronger protection from a more enthusiastic High Court or in a national bill of rights. Stronger self-regulation with the carrot of consumer law exemptions for compliant media outlets would strike the appropriate balance of freedoms and responsibilities in the interim.

Leave a comment

Filed under Uncategorized

Tagged as ACCC, Australian media, censorship, consumer law, convergence, Finkelstein, free expression, journalism, law, media, media inquiry, media law, Media Report, News of the World, NOTW, Press Council, press freedom